THE KING v. P. A. WILLIAM PERERA et al

118-NLR-NLR-V-45-THE-KING-v.-P.-A.-WILLIAM-PERERA-et-al.pdf


The King v William Perera.
433
[Court of Criminal Apphal.]
194* Present: Howard C.J., Keuneman and da Kretser JJ.
THE KING v. P. A. WILLIAM PERERA et al.
49—M.G. Gampaha 18,370.
Evidence—Recentpossession of stolenproperty—Presumptionof theft or
receivingstolenproperty—Presumptionof fact—EvidenceOrdinance,
s. 114, illustration (a).
Thg twoaccused were charged withtheoffences,among others,of
beDbg members of an unlawfulassemblythecommon objectof which
wasto commit robbery and were convicted, of committing offences
punishable under sections 146and436, 146and333, 146 and382 of the
Penal Code.
The main evidence againsttheaccusedwasthat on theday after
the robberyseveral hundred sheets ofrubber, which were removed
fromthe bungalow which was broken to,werefound inthehousesofthe
twoaccused.The other evidenceagainst"theaccusedwasthatoftwo
witnesses, who deposed thatonthe nightofthe robbery they met the
firstaccuseddriving a cart, inwhichtherewere severalotherpersons
and that the second accused was walking behind the cart.
Held, that the evidence in $he case coupled with the failure of the accused to giveevidence raised an overwhelming presumption that the accused participated in therobbery.
It is a presumption of fact dependent on the surrounding circumstancesin each case as to whether the accused is guilty of receiving stolenproperty or of theft, and in this case, of robbery.
A
PPEAL against a conviction by a Judge and Jury before 2ndWestern Circut, 1944.
J.E. M. Obeyesekere (with- him M. M. Kumaraktdasingham), for bothappellants.—There is no direct evidence implicating the appellants.The conviction is based entirely on the discovery of some of the stolenproperty in their houses on the day after the robbery was committed.According to illustration (a) of section 114 of the Evidence Ordinance,where the possession of stolen goods is not accounted for, two inferencesare possible, namely, theft or the lesser offence of receipt of stolen property.In the summing-up in this case there is no direction to the jury that whenthe question arises whether the presumption of the graver offence orof the lesser offence is to be drawn it is for the prosecution to establishthe graver presumption rather than for the graver presumption to bedrawn in the absence of an explanation from the accused. The pre-sumption in this case is more in favour of receiving than theft.The
accused have not been indicted for any offence of receiving and aretherefore entitled to be acquitted. See Emperor v. Mayadhar Pothall;Raghvnath v. Emperorz; Reg. v. Langmead3; Pratap Lobar v. Emperor4,There is no proof in this case that five or more persons took part in therobbery.
> 11939) A. I. R. Patna 577 at 579.3 (1864) 10 L. T. (N. S.) 350.
* (1925) 26 Gr. L. J. 1380 at 1383.* (1936) A. I. R. Nagpur 200 at 202.
434
HOWARD G.J.—The King v. William Per era.
H. W. R. Weerasooriya, G.C., for the Grown.-—In a case of recentpossession of stolen property it is necessary to look into the surround-ing circumstances to see whether such possession is evidence oftheft or dishonest receipt. The nature of the article stolen, the timewithin which it was discovered, the improbable or unreasonable natureof the explanation given by the accused are all to be taken into considera-tion. The Jury in this ease have elected to convict for theft and notfor receipt, and their verdict is justified by the evidence. See Reg. vExall and others1; R. v. Densley and others2, R. v. John Bailey3.
There is evidence that five or more persons took part.
M. M. Kumarahulasingham. replied.
Cur. adv. vult.
Augusl 4, 1944. Howard G.J.—
The two accused appeal from their convictions on a charge of beingmembers of an unlawful assembly and as such on further charges ofcommitting offences punishable under sections 146 and 436,146 and
333, 146 and 380, and 146 and 332 of the Penal Code. The appeals arebased on two grounds, (a) that it was not proved conclusively that fiveor more persons took part in the robbery, (b) that a wrong inference wasdrawn from the evidence that the accused took part in the robbery.In connection with ground (a) Mr. Obevesekere, on behalf of the appel-lants, has contended that the question put by the Jury and recorded atpage 25 of the Judge’s charge indicated considerable confusion intheir minds. The question to which Mr. Obeyesekere referred was askedby the Jury to elicit from the Judge a ruling as to what constituted partici-pation in a gang robbery. No exception can, in our opinion, be taken tothe direction given by the learned Judge in answer to this question.With regard to the number that took part in this robbery, Hon PedrickAppuhamy states that three or four persons seized him and held his handsaud feet together. Also that almost immediately after he was left tiedthe watcher was brought and placed in the other corner of the room.He also says that the watcher must have been tied by some other people.In answer to the Court Pedrick Appuhamy also states that there weremore than five people. Charles Appuhamy, the watcher, says that he wasfalling asleep when three persons came calling for “ watcher ” and got-into the room occupied by Pedrick Appuhamy. That as Pedrick was tied,he was also tied in the verandah and carried into the room. Apart fromthe people who tied him and Pedrick there were a large number of peoplewhom he could not identify because he was blindfolded. He also saidhe is certain he was being held down by three men while three or fourrushed into the Kangany’s room- In view of the evidence of Pedrickand Charles I do not think that there is any substance in the point thatit has not been proved that five or more persons participated in thisrobbery.
The second ground of appeal necessitates a more detailed examinationof the evidence. Pedrick and Charles both testify to the fact that aboutmidnight on August 4, 1943, the small bungalow on the rubber estate
1 {1866) 176 E. R. 850.2 172 E. R. 1294.
13 Cr. App. R. 27.
HOWARD C.J.—The King v. William. Perera.
435
belonging to Mr. Tudugalla was broken into by a large number of thieves.Pedriek and Charles were both tied up whilst the – assailants proceededto open boxes and rifle the bungalow. After their departure a largenumber of rubber sheets and other articles were found missing. NeitherPedriek nor Charles identified any of their assailants. The main evidenceagainst the two accused was the fact that on the day after the robberyat 10.50 p.m. there was found in the house of the first accused 300 rubbersheets and two brand new Dunlop Bates tyres. The house of the secondaccused was searched at 11.45 p.m. and 700 diamond rubber sheets!and**, an old torn tweed coat were found. Some of the rubber sheets,the Dunlop Bates tyres and the torn, tweed coat were identified as propertystolen fi-om the house of Pedriek on the night of the robbery. No ques-tion was raised by Mr. Obeyesekere with regard -to the genuineness ofthis identification. The only other evidence connecting the two accusedwith this robbery was supplied by two persons called Peter Peries andD. A. P. Suriapperuma. Peries stated that on the night of the robberyabout 11 or 11.30 p.m. he was returning from Colombo when a littleway from Kurunduwatta estate road he met a cart without lights. Thefirst accused was driving the cart and there were others inside. Thesecond accused and another man were walking behind the cart. Theevidence of Suriapperuma was to the effect that he heard of the burglaryabout 8.30 or 9 p.m. on August 4. He made investigations and found freshwheel tracks up to a footpath that led to the accuseds’ houses. He alsofound a sheet of rubber in a bush. He suspected the two accused andreported the matter to Mr. Tudugalla who informed the police. Thehouses of the two accused were then searched. Neither accused electedto give evidence. The defence suggested that the large number ofrubber sheets found in the houses of the accused had been introducedby the witness Suriapperuma and Tudugalla, to implicate the twoaccused. The defence even went so far as to make the fantastic sug-gestion that to effect this purpose the roof of the house of the first accusedhad been removed.
Mr. Obeyesekere takes exception to certain passages which occurin the charge of the learned Judge. At page 7 the following passageoccurs:—
“ Possession of stolen property soon after tbe commission of a theftraises the prima facie presumption that the possessor was either thethief or the receiver of stolen property knowing it to be stolen accordingto the circumstances of the case. You must take the evidence as awhole and decide whether it raises a presumption of theft or of dis-honestly receiving stolen property. On this question the fact that thestolen articles were found in the houses of the accused within 24 hoursof the theft has an important bearing. There was hardly any timefor the articles to pass from hand .to hand by normal bargain and sale.In the circumstances, you would be justified in drawing the presumptionthat the accused were the thieves and not receivers of stolen property.If, however, you think that the presumption of theft is not raised bythe evidence but only the presumption of receiving stolen property,or if a reasonable doubt arises in your minds on that point, then it
436HOWARD C.J.—The King v. William Perera.
is your duty to acquit the accused. Tou need not consider the caseany further because there is no charge against the accused that theyreceived stolen property.”
Again at pages 14-15 there is the following passage: —
“ This shows that the presumption of theft arising from the recentunexplained possession of stolen property may extend even to themanner in which the theft was committed, namely, of robbery. Ifyou draw the presumption under section 114 (a) that the accusedwere the thieves, you will be entitled to draw the further presumptionthat they committed robbery. That is the meaning of that passage.There can be no doubt that the stolen articles were found in the ^housesof the accused soon after the theft. You will have to consider whetherthe accused had possession of the articles.”
I would also invite attention to the following passage on pages 24-25 : —“You must ask yourselves whether this evidence is consistent withthe guilt of the accused and inconsistent with any reasonable hypothe-sis of innocence. It seems to me that it is not. So, it is not possiblefor you to return a verdict against the accused upon the circumstantialevidence. The prosecution, has to fall back upon a presumptionraised under section 114 of the Evidence Ordinance. If you are ofopinion that the accused were in possession of the rubber and that thepresumption is that they were the thieves and not the receivers ofstolen property, and that there was an unlawful assembly, then itwill be open, to you to find the accused guilty on the charges laid againstthem. If a reasonable doubt arises in your minds on the point, then itwill be your duty to give them the benefit of the doubt and acquitthem.”
The passages I have cited from the charge of the learned Judge clearlyindicate that he left it open to the Jury to find by their verdict on theevidence that the two accused participated in the robbery. He alsoindicated that the Jury might find that the accused were merely receiversof stolen property in which case they were to be acquitted. Mr. Obeye-sekere contends that the Jury should have been directed that the pre-sumption arising from section 114 (a) of the Evidence Ordinance wasthat the two accused were receivers rather than the actual thieves. Weare of opinion that there is no substance in this contention. He has citedin support of this contention some Indian, authorities. In one of these,Emperor v. Pothal1, it was held as follows: —
“ Where robbery has been committed along with murder and articlesalleged to have been robbed from the body of the deceased have beendiscovered in the house of the accused as a result of a statement madeby him to the police and the accused gives no explanation for thepossession of these articles, one may presume under section. 114 that theaccused was either involved in the murder and robbery or at leastreceived the stolen property knowing it to be the proceeds of therobbery. This presumption is -within the terms of section 114, illustration
; but when the question arises whether the presumption of the
1 (1939) A. I. R. Patna 577.
HOWARD G.J.—The King v. William Perera.
437
graver offence or of the lesser offence is to be drawn., it is for the prose-cution to establish the graver presumption rather- than for the graverpresumption to be drawn in the absence of an explanation from theaccused.”
It would appear that in Emperor v. Pothal the accused was a goldsmith,a person likely to be resorted to by a thief for the disposal of stolen,jewels. Moreover the question which the learned Judge was consideringwas whether there was any evidence other than that of being in possessionof property of the deceased to connect the accused with the latter’smurder. In the absence of such evidence it was held that the presumptionwas inj f&vour of the accused not being a participant in the murder.The same principle was formulated in Lohar v. Emperor1 and Raghunathv. Emperor2. Mr. Obeyesekere also cited the case of Reg. v. Langmead3.The judgment of Blackburn J. in this case is as follows: —
“ I am of the same opinion. As a proposition of law there is nopresumption that recent possession points more to stealing thanreceiving. If a party is in possession of stolen property recentlyafter the stealing, it lies on him to give an account of his possession,and if he fails to account for it satisfactorily, he is reasonably presumedto have come by it dishonestly; but it depends on the surroundingcircumstances whether he is guilty of receiving or stealing. Wheneverthe circumstances are such as to render it more likely that he did notsteal the property, the presumption is that he received it. In thepresent case I believe that the Jury have drawn the right conclusion.”
The ease hardly seems to bear out the contention of Mr. Obeyesekerethat the presumption is more in favour of receiving than theft. Thisjudgment seems to lay down that it is a presumption of fact dependenton the surrounding circumstances in each case as to whether the accusedis guilty of receiving or stealing. This principle seems to follow fromsome cases cited by Mr. Weerasooriya on behalf of the Crown. InR. V. Hensley and others4 it was held as follows: —
” Stolen property being found concealed in an old engine-house, andit being watched, the prisoners were seen taking it away: —Held,that, to warrant the conviction, of the prisoners, on an indictmentcharging them as receivers, the jury must be satisfied that the propertyhad been stolen by some other person to the knowledge of the prisoners,and that there should be some evidence to show that such was thocase:—Held, also, that the evidence given in this case would warranta conviction for the stealing.”
In. R. V. Exall and others5 Pollock C.B. in his charge to the Jurystated as follows : —
•
” And so it is of any crime to which the robbery was incident orwith which it was connected, as burglary, arson, or murder. Bor,if the possession be evidence that the person committed the robbery,
1 (1936) A. I. JR. Nagpur 200 at 202.3 10 L. T-. 350.
1 26 Cr. L. J. of India 1380.* 172 E. JR. 1294.
* 176 E. R. 850.
438
HOWAED C.J.—The King v. William Perera.
and the person who committed the robbery •committed the other crime,then it is evidence that the person in whose possession the propertyis found committed that other crime.
The law is, that if, recently after the commission of the crime, aperson is found in possession of the stolen goods, that person is calledup to account for the possession, that is, to give an explanation of it,which is not unreasonable or improbable. The strength of the pre-sumption, which arises from such possession, is in proportion to theshortness of the interval which has elapsed. If the interval has beenonly an hour or two, not half a day, the presumption is so stro'ng,that it almost amounts to proof; because the reasonable infe'repce is,that the person must have stolen the property. In the ordinaryaffairs of life, it is not probable that the person could have got posses-sion of the property in any other way. And juries can, only judge ofmatters, with reference to their knowledge and experience of theordinary affairs of life.
Thus, for instance (to put the present case), if the property were theproduce of a burglary, then the possession of it, soon after the burg-lary, is some evidence that the person in whose possession it is foundwas a party to the burglary. For, at all events, he must have receivedit from one who was a party to it; and this is strong evidence thathe was privy to it; and some evidence that he was a party to it. Whe-ther or not he was so, must be judged of from all the other circumstancesof the case.
If the explanation is, for instance, that the party has found theproperty where it might have been found, and was going to deliverit up to a constable, and the circumstances were consistent with thataccount, some evidence ought to be given tc contradict it, and show itto be untrue.
What the jury have to consider in each case is, what is the fairinference to be drawn from all the circumstances before them, andwhether they believe the account given by the prisoner is, under thecircumstances, reasonable and probable, or otherwise.”
The Jury in this case were invited to say whether the evidence pointedto theft rather than receiving. They have answered this question byfinding that the accused participated in the robbery. In our opinionthe evidence of Peries and Suriapperuma and the finding of such heavymaterial in the form of a large number of rubber sheets in the houses ofthe accused so soon after the robbery, coupled with the failure of theaccused to give any explanation raised an overwhelming presumptionthat the latter participated in the robbery. The appeals are, therefore,dismissed.
Appeals dismissed-